Friday, November 16, 2007

The court's order itself is "surprisingly scant," thus we know little of the facts surrounding this case. What we do know is that once again it involves Ripoffreport.com. Jinkees! The Sec. 230 caselaw for this one defendant is surprisingly robust. Ripoffreport.com must have some well paid attorney on retainer that does little more than mash the print button for the proforma Sec. 230 Motion to Dismiss form... merely taking a bit of time to scrawl in the name of the latest plaintiff.

Of course, if the court's law clerks are too busy researching water rights cases, we are glad to refer them to our "surprisingly scant" list of Sec. 230 cases.

Anyway, we here at Cybertelecom are likewise into automation and have developed our proforma blog post for these Ripoffreport.com cases. Here it is:

Some plaintiff [FILL IN BLANK] got irked by what some disgruntled third party wrote about them at Ripoffreport.com. Ripoffreport.com "is a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals." Ripoffreport.com did not write the disgruntled comment. Ripoffreport.com filed a Rule 12(b)(6) Motion to Dismiss pursuant to 47 USC § 230. The Court granted the motion and dismissed the complaint as against defendant Ripoffreport.com.

Of course it never goes proforma, does it.

Plaintiff apparently alleged that Ripoffreport.com either edited or authored the headline of the disgruntled comment - and that headline could be actionable. The court has to take the facts as alleged by plaintiff as true for a motion to dismiss (the court is merely deciding whether there is a potential claim for which relief can be granted -- it is not deciding the merits of the case as to whether in fact relief should be granted - it's like if I sued you in court for being short - while this may be true, it is not a cause of action for which relief can be granted). Therefore the court dismisses the complaint against Ripoffreport for the disgruntled third party comment, but denies the motion to dismiss with regard to the headline. But the Court made clear, if plaintiff cant prove that Ripoffreport authored the disgruntled headline, then plaintiff will face pretty much the same outcome as the rest of the complaint.

So what's cool about all this. I go looking at Ripoffreport.com for a bit of deep research in preparation for this post, and I find a page entitled Want to Sue Ripoff Report? The page states:

If you are considering suing Ripoff Report because of a report which you claim is defamatory, you should be aware that to date, Ripoff Report has never lost such a case. This is because of a federal law called the Communications Decency Act or "CDA", 47 U.S.C. § 230. Because this important law is not well known, we want to take a moment to explain the law, and to also explain that the filing of frivolous lawsuits can have serious consequences for those who file them, both parties and their attorneys. The CDA is part of our federal laws.An excellent Wikipedia article discussing the history of the law can be found here. In short, the CDA provides that when a user writes and posts material on a website such as Ripoff Report, the site itself cannot, in most cases, be held legally responsible for the posted material.

Do the plaintiff's in these cases get to file RipoffReport.com disgruntled comments about their attorneys who advised them to file these pointless complaints?

The case was filed by Dylan on September 18. The court dismissed the action on September 27 on its own - it didnt even give Google the chance to respond!

A Sec. 1983 action is a civil rights action that protects us from the government doing bad things:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress . . . .

42 USC 1983. The problem here is that as big as Google is - it's not a state - it's not the government. So whatever "Google" spells upsidedown, there is no cause of action against Google as a state. Dylan has "failed to state a claim for which relief can be granted."

Now Cybertelecom has not done a lot of work around the UDRP, and this does not exactly involved federal Internet law or policy - - but com’on, a domain name dispute involving “FCC.”This I have to review!

Before we unpack how a company in Spain could claim that a Yankee’s use of FCC.COM for FCC related news violates its Spanish trademark, let’s review the video tape and see who’s registered what:

FCC.GOV is registered by the Federal Communications Commission, as is FCC.US

FCC.COM is the domain name at issue in this case and it is registered in the name of Keith Levenson, CEO of ACME Media.The WHOIS record reveals that this domain was first registered in 1994 (13 years prior to the present conflict).

In literary terms, this is the setting of our conflict.“FCC” are the initials of a US federal agency, the Federal Communications Commission.Punch “FCC” into Google and the Federal Communications Commission is the first search result shown.FCC.COM is the ninth search result shown.After 10 pages of search results (about 100 search results), producing many organizations using the abbreviation “FCC” including Families with Children in China, Farm Credit Canada, and Frontier Community College, no search result for Fomento de Construcciones y Contratas were observed (I set my language preference to any language and my region preference to any region, and I was not logged into Google).

Fomento de Construcciones y Contratas appears to hold more “FCC” second level domain names than anyone else, including the US Federal Communications Commission.Of the five FCC domain names found (there may be more) that Fomento de Construcciones y Contratas registered, only FCC.ES resolved to a webpage.FCC.COM.ES, FCC.INFO,FCC.MOBI, FCC.EU, and FCC.BIZ produced “Server Not Found” error messages when I tried to access them (6 pm EST November 10, 2007).

Now to the conflict.On May 25, 2007, Fomento de Construcciones y Contratas filed a complaint before the WIPO Arbitration and Mediation Center.Apparently the complaint was deficient, and on June 11, Complainant filed an amended complaint.On July 25, Complainant requested a suspension of proceedings on the grounds that the parties were negotiating a resolution.However, on August 27, Respondent said, “negotiations, what negotiations?What are you talking about?” (I paraphrase.)

So back to the conflict.According to the UDRP, for the Complaint to succeed, the Complainant must prove that:

“(i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) The Domain Name has been registered in bad faith and is being used in bad faith.”

If any one element fails, then the complaint fails.

The three-member review Panel focused on the second and third elements, and therefore waived its hands at the first.The Panel has noted that Complainant’s trademarks incorporate “FCC” (see the logo here) but Complainant has “no registration of the letters FCC simpliciter.”Nevertheless, the Panel concludes,

the Panel is content to deal with this issue solely on the basis of the Complainant’s registered trademarks and finds that the Domain Name is identical or confusingly similar to a trademark in which the Complainant has rights.

The problem, according to the Panel, is that Respondent clearly has a legitimate interest in the domain name.The Respondent has developed a website displaying news and information relevant to the US Federal Communications Commission.A simple review of Respondent’s website makes this clear.Such a review, however, was problematic because Complainant neither included a print out copy of Respondent’s website nor described Respondent’s website in Complainant’s Complaint.And this is a problem, the Panel notes, because even though WIPO panels are reviewing domain name disputes, some WIPO panels “restrict their consideration solely to the papers before them” and never bother to check the Internet.They never go online to check whether there is a legitimate website or other Internet resource associated with these domain names in question.That definitely would present a problem!

Anywho, Respondent successfully demonstrated that he has a legitimate use of the domain FCC.COM and that there was no issue of bad faith (indeed it is an undisputed part of the record that Respondent had never even heard of Complainant).The Complaint therefore fails on the second and third elements.

But it doesn’t end there.

Respondent fires back.Respondent complains of attempted reverse domain name hijacking on the part of Complainant. “Reverse Domain Name Hijacking is defined in paragraph 1 of the Rules as meaning ‘using the Policy in bad faith to attempt to deprive a registered domain name holder of a domain name.’”Respondent characterizes this whole little escapade as a “significant and wholly avoidable trouble and expense” – and the Panel agreed. The Panel breaks from its methodical disposition of the proceeding to expound on

the inexplicable failure on the part of the Complainant to exhibit a print-out of the Respondent’s homepage or, failing that, to include within the body of the Complaint a description of the content of that homepage.

And then,

Anyone examining the Respondent’s website could see that it was a genuine site and that anyone launching a complaint was bound to fail.

The exasperation of the Panel crescendos with

The Complaint makes clear that the Complainant had visited the Respondent’s website. The Complainant mentions the fact that the Respondent’s website features revenue earning advertisements, but does not identify the nature of the advertisements; moreover, the Complainant uses the fact of those revenue earning advertisements (i.e. commercial gain) as a basis for its bad faith claim. The Panel is in no doubt that it was incumbent upon the Complainant in the circumstances of this case, noting in particular the nature of the domain name in question, to provide the Panel with sufficient detail of the Respondent’s website to enable the Panel to make a fair assessment.

The Panel finds that the Complainant’s failure to do so, irrespective of whether or not the failure was intentional (as to which the Panel makes no finding), constitutes an abuse of the Administrative Proceeding. The Reverse Domain Name Hijacking allegation succeeds.

Ouch!

Oh, but the reason why this quibble was interesting is the FCC connection. So, just in case you are wondering, the Panel courteously clarifies - in its only footnote - that even though Complainant’s claim was an abuse of process, if it were the US FCC that had brought the claim, things might - uh - be different:

This is not to say, of course, that the Federal Communications Commission for example would in such a situation necessarily be found liable to a finding of reverse domain name hijacking.

What?!Huh?! Where?!Does the FCC even have a trademark for “FCC?”As far as the FCC is concerned, “trademark issues properly should be addressed by the courts under the trademark protection and unfair competition laws, rather than by the Commission." In Re Toll Free Service Access Codes, Fourth Report and Order and Memorandum Opinion and Order, FCC CC Docket No. 95-155, Para 7 (March 31, 1998).Uh… Yeah… Uh… what the Commish said!

Tuesday, November 06, 2007

The Good Samaritan provisions of Sec. 230 the Communications Decency Act hold water over the water – where water means overseas international judgments – and where overseas in this case means the dirt road leading north guarded by Canadian Mounties. Between a Canadian judgment for defamation which involved third party content, and the safeguards of Sec. 230 of the Communications Decency Act, the Good Samaritan wins the smack-down.

So here’s the dirt.This week’s spat is Global Royalties, Inc., v Xcentric Ventures, LLC, No. 07-956-PHX-FJM (DAR October 10, 2007).Defendant Xcentric Ventures runs a whine-website called Ripoff Report.A disgruntled third party visited defendant’s website and expressed disgruntledness in three separate posts.Plaintiff Global Royalties took offense in the disgruntledness and ended up suing defendant and disgruntled party in Canadian court.Defendant never showed up.The court issued an injunction requiring defendant to remove all of disgruntled party’s posts from its website, prohibiting defendant from posting any further comments about plaintiff, and pushed the dispute to trial court for talk about damages.

Plaintiff brought the judgment South-of-the-Border down to Arizona seeking enforcement, and also called defamation on defendant.The court said, wait a minute, we don’t just enforce Canadian-hockey playing court orders as a matter of course.And as to “defamation,” the comments in question were written by a third party and not defendant, and therefore pursuant to the Good Samaritan clause of the CDA, the defendant is not liable.47 USC § 230.

Wait a minute, argued plaintiff, defendant never took down the comments as ordered by Dudley Do Right, and therefore plaintiff has “adopted” the disgruntled statements.

Sorry, responded the court, but it is well established that notice to a website owner of some problem with someone whining does not morph the whining into the website’s own speech.This aint the DMCA.

Which led the judge to do a little whining of his own:With no risk or liability for third party content, a website owner has no incentive to take down that content where it flusters some plaintiff.“If it was an unintended consequence of the CDA to render plaintiffs helpless against website operators who refuse to remove allegedly defamatory content, the remedy lies with Congress through amendment to the CDA.”

One of the truly great innovations of the Internet and specifically Web 2.0 is the interactive features that permits disgruntled third party’s to visit review web sites and whine about the failings of their least favorite companies.You can find out how horrible your plumber is, how horrible your teacher is, or how horrible Bruce Willis’ latest movie is (and if you believe every review or comment you read on the Internet, I have a nice investment in Nigeria to recommend to you). International treaties and fear of the Dudley Do-Right cannot thwart this.It’s good to know that your right to whine holds water over the water (even where the water is a frozen hockey pond).